Udai Bir Singh vs State Of U.P.
2018 Latest Caselaw 529 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Reserved
 

 
Court No. - 53
 

 
Case :- CRIMINAL REVISION No. - 262 of 1990
 

 
Revisionist :- Udai Bir Singh
 
Opposite Party :- State Of U.P.
 
Counsel for Revisionist :- Madan Bihari Lal
 
Counsel for Opposite Party :- A.G.A.
 

 
Hon'ble J.J. Munir,J.

This revision is directed against a judgment and order of Sri Dharam Paul, the then Second Additional Sessions Judge, Kanpur Nagar dated 12.02.1990 in Criminal Appeal No. 13/1989 dismissing the appeal and affirming a judgment and order dated 30.01.1989 passed by Sri Liyakat Ali, the then Metropolitan Magistrate, Kakadev, Kanpur Nagar in Criminal Case No. 2289 of 1987 (earlier numbered as 1538 of 1980), State vs. Udaivir Singh, convicting the revisionist Udaivir Singh of an offence punishable under Section 408 IPC and sentencing him to suffer rigorous imprisonment of one year and imposing a fine of Rs. 1,000/- with a direction that in the event of default in payment of fine imposed, an additional six months of simple imprisonment would have to be suffered.

The facts giving rise to this revision are that the revisionist was a Secretary with Sadhan Sahkari Samiti Ltd., Sen Paschim Para, where the President (Pradhan) of the society was one Jagmohan Singh. Jagmohan Singh lodged a first information report in his capacity as the President of the Society on 21.03.1980 at 10:00 a.m. with police station Sachendi, District Kanpur giving rise to case crime no. 89 of 1980 under Section 409 IPC, P.S. Sachendi, District Kanpur Nagar alleging that twenty thousands bricks were purchased by the Sadhan Sahkari Samiti Ltd., Sen Paschim Para (hereinafter referred as "the Society") for the purposes of construction of a building for the society. The bricks purchased were not found to be of requisite standard and quality, and, therefore, these were sold to one Uma Shanker for a sum of Rs. 3100/- on 04.02.1979. It is said that proceeds of the sale in the sum of Rs. 3100/- that was received by the revisionist as Secretary of the Society was not shown in the account book of the society nor was the same deposited in the bank account of the Society. The revisionist instead misappropriated the said sum of money and utilized it for his personal use causing wrongful loss to the society and wrongful gain to himself.

The FIR aforesaid after registration by the police as a crime was investigated and a charge sheet was submitted against the revisionist on 10.06.1980 charging him of an offence punishable under Section 409 IPC. The Magistrate took cognizance of the case on the basis of the said charge sheet wherein five witnesses were cited in support of the prosecution case - three of fact and two formal. It appears that charge was framed under Section 408 IPC after hearing the revisionist at the time of framing of charge vide order dated 04.10.1982. The revisionist denied the charge and claimed trial.

Heard learned counsel for the revisionist Sri M.B. Lal in support of this revision and Sri Ajeet Ray, learned AGA for the State and perused the records of the courts below.

A perusal of the evidence shows that the revisionist admits the fact of being the Secretary of the society in the year 1979. He also admits the fact of being in receipt of a sum of Rs. 3100/- from Jagmohan Singh, President of the Society on 04.02.1979, and, the further fact that he issued a receipt for the money, Exhibit Ka-2. He has stated that he has duly posted the deposit of the said amount of Rs. 3100/- in the building account book as well as in the cash book. He has therefore, not at all committed offence charged.

The prosecution in support of the case have examined Jagmohan Singh (PW-1) who is the President of the Society, Uma Shanker (PW-2) the purchaser of the bricks sold by the society for a sum of Rs. 3100/-, Subedar Singh, PW-3, who is the Investigating Officer and Rajpal (PW-5) a formal witnesses who was confined in his evidence to prove the original G.D. having been destroyed. The prosecution witnesses stood by the prosecution case as detailed hereinbefore. At the conclusion of the evidence for the prosecution, the revisionist was examined under Section 313 Cr.P.C. on 03.11.1988 which reads as follows (in Hindi Vernacular):

"C;ku 313 lh-vkj-ih-lh-

iz'u& xokgku ds c;ku lqus] c;kuks ds lEcU/k es D;k dguk gSA

mRrj& tx eksgu flag nksLr xokgku gS bl dkj.k xyr xokgh ns jgs gSA

iz'u& D;k lQkbZ nsuk gSA

mRrj& th gkWA

iz'u& D;k lQkbZ nsuk gSA

mRrj& th] gekjk iSlk ,Q-vkbZ-vkj- gksus ds ifgys x;k FkkA ;g ,Q-vkbZ-vkj- xyr ntZ djkbZ xbZA"

The accused entered defence and proceeded to examine himself as the sole defence witness. The revisionist deposing as a defence witness has said that the money received by way of proceeds was duly entered by him in the cash book in his hand. The proceeds of sale of bricks were entered in the building cash book at page no. 32 on 28.03.78 clearly indicating a sum of Rs. 3100/-. The page of the building cash book no.3 was marked as Exhibit Kha-1 while the relevant page, that is to say, page-32 of the cash book was marked as Exhibit Kha-2. In his cross examination the witness has stated that Rs. 3100/- were given to him by Jagmohan Singh, the President of the Society (PW-1). He had utilized this money in the construction of the godown. The record of this expenditure is in the cash book. The expenditure of the sum of Rs. 3100/- is duly entered in the manner that at page no.3 of the cash book there is an expenditure entry of Rs. 1442/- and one of Rs. 234/- at page-4, an expenditure entry each of Rs. 600/- and Rs. 700/-. He has stated that these entries have been made on the running pages of the cash book. It is further said that it is incorrect to say that he has not spent this money as shown in the cash book (for the purpose of the society) and that he has misappropriated the moneys.

The defence of the accused that the expenditure of the sum of Rs. 3100/- duly is made in the account books of the society have on a careful analysis by the trial court and on reappraisal in appeal by the learned Sessions Judge have been found to be the result of interpolation made in those books by the revisionist to rid himself of the consequences of misappropriation and criminal breach of trust. Those well reasoned findings that the entries are based on manipulation in the account books that have been found to be interpolated consistently by the two courts below are not open to reappraisal within the confines of the revisional jurisdiction of this Court. There is no such illegality, material irregularity or a fallacy in the assessment of evidence that arises from non consideration of material evidence on record or the consideration of irrelevant evidence or perverse conclusions drawn from evidence brought to the notice of this Court that may invite a revisional scrutiny. The appellate court as well as the Magistrate on the basis of evidence on record have taken a plausible view where they have found that the revisionist after entries in the relevant books had been checked by the inspecting authority had interpolated to introduce false postings about the utilization of a sum of Rs. 3100/- for the purpose of construction of a godown of the society. The guilt of the appellant has been found firmly proved by the two courts of fact below and there is no reason for this Court to upset those findings, merely because a different view may be taken; here, in fact, it is difficult to say if a different view can at all be taken.

Learned counsel for the revisionist has attempted to draw this Court into some kind of re-appreciation about these entries in the books of accounts but this Court is aware of the limitation of its jurisdiction in the matter where it is forbidden to the revisional court to foray into an area where an evaluation of evidence, a second time is the inevitable result. In this connection the line of demarcation beyond which revisional powers of this Court cannot be exercised has been clearly spelt out in the decision of the Hon'ble Supreme Court in State of Maharashtra vs. Jagmohan Singh Kuldip Singh Anand and others (2004) 7 SCC 659, thus:

21. In embarking upon the minutest re-examination of the whole evidence at the revisional stage, the learned Judge of the High Court was totally oblivious of the self-restraint that he was required to exercise in a revision under Section 397 CrPC. On behalf of the accused, reliance is placed on the decision of this Court to which one of us (Justice Sabharwal) is a party, i.e. Criminal Appeal No. 523 of 1997 decided on 9.3.2004 [Ram Briksh v. Ambika Yadav]. That was the case in which the High Court interfered in revision because material evidence was overlooked by the courts below.

22. The Revisional Court is empowered to exercise all the powers conferred on the Appellate Court by virtue of the provisions contained in Section 410 CrPC. Section 401 CrPC is provision enabling the High Court to exercise all powers of Appellate Court, if necessary, in aid of power of superintendence or supervision as a part of power of revision conferred on the High Court or the Session Court. Section 397 CrPC confers power on the High Court or Sessions Court, as the case may be,

"for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed and as to regularity of any proceeding of such inferior court."

It is for the above purpose, if necessary, the High Court or Sessions Court can exercise all appellate powers. Section 401 CrPC conferring powers of Appellate Court on the revisional court is with the above limited purpose. The provisions contained in Section 395 to Section 401 CrPC, read together, do not indicate that the revisional power of the High Court can be exercised as a second appellate power."

The authority on this limitation on the revisional jurisdiction of this Court has stayed consistent as would appear from the law in the case of Duli Chand vs. Delhi Administration 1975 (4) SCC 649.

This being the position of law and the findings recorded by the courts being flawless, the impugned judgments of the two courts below holding the revisionist guilty do not deserve to be interfered with in revision.

This brings the court to the issue of sentence. The learned counsel for the revisionist has made a fervent effort to persuade this Court that looking to the circumstances of the case including the nature of the offence and the character of the offenders it is not a fit case where the revisionist should be sent back to jail. He submits rather that it is a case where the revisionist deserves indulgence of release on probation of good conduct under Section 4(1) of the Probation of Offenders Act, 1958. Section 4(1) of the Probation of Offenders Act, 1958 reads:

"4. Power of court to release certain offenders on probation of good conduct-

(1) When any person is found guilty of having committed an offence not punishable with death or imprisonment for life and the court by which the person is found guilty is of opinion that, having regard to the circumstances of the case including the nature of the offence and the character of the offender, it is expedient to release him on probation of good conduct, then, notwithstanding anything contained in any other law for the time being in force, the court may, instead of sentencing him at once to any punishment direct that he be released on his entering into a bond, with or without sureties, to appear and receive sentence when called upon during such period, not exceeding three years, as the court may direct, and in the meantime to keep the peace and be of good behaviour:

Provided that the court shall not direct such release of an offender unless it is satisfied that the offender or his surety, if any, has a fixed place of abode or regular occupation in the place over which the court exercises jurisdiction or in which the offender is likely to live during the period for which he enters into the bond."

It is trite that the decision to release the convict on probation of good conduct to which the revisionist are entitled by the terms of Section 4(1) of the Probation of Offenders Act is one aspect of the matter but the circumstances of the case that would pursuade the Court to order release on probation including the nature of the offence and the charater of the offenders is quite another.

Looking to the fact that revisionist has no criminal history and is otherwise a respectable man has committed the offence of which he stands convicted, the first time in his life, and, that the said offence was committed in the year 1979/1980. By now he would be a reformed man, part of the main stream of the society, no useful purpose would be served in sending him back to jail. In the opinion of this Court he would be in the twilight years of his life, aged about 84-85 years, reckoned on the basis of his age given out at the time of his deposition before the trial court in the year 1986. Under the circumstances this Court finds that ends of justice would be met by extending the benefit of probation to the revisionist under Section 4 of the U.P. Probation of Offenders Act, 1958.

Accordingly, this revision is allowed in part. The conviction under Section 308 IPC is upheld; the sentence awarded to the revisionist stands modified.

It is ordered that the revisionist Udai Bir Singh shall be released on probation under Section 4 of the U.P. Probation of Offenders Act on executing a personal bond in the sum of Rs. 20,000/- with condition that he will maintain the piece and be of good behavour for a period of one year. Upon the breach of the aforesaid condition, the revisionist shall be taken into custody to serve out the sentence awarded to him.

Personal bond shall be filed to the satisfaction of the trial court. Upon execution of a personal bond as directed here, bail bond executed by the revisionist in connection with bail pending revision shall stand cancelled and sureties, if any, discharged.

The revisionist is directed to appear before the trial court within three months of date to comply with this order. It is further directed that fine imposed by the courts below shall be deposited within three months from the date of this judgment, failing which it will be recovered in accordance with law.

Let a copy of this judgment be certified to the trial court forthwith.

Order Date : 15.05.2018

Imroz